tv [untitled] July 1, 2012 1:00pm-1:30pm EDT
>> so that's it. that's the last word. each week, american history tv sits in on a lecture with one of the nation's college professors. you can watch the classes here every saturday at 8:00 p.m. and midnight eastern and sundays at 1:00 p.m. this week, columbia law school professor that nan yell persily looks at redistricting and gerrymandering in the united states. and when use of redistricting by political parties and incumbents to protect and advance their interests. he also talks about more racially charged redistricting fights such as the 1960 gomillion v. lightfoot supreme court case which the court found a district was created to disenfranchise black voters. that case helped lead to the 1965 civil rights law act. columbia law school is located in new york city.
this is a little over an hour. welcome. welcome to everyone at home, as well. we'll continue the discussion of redistricting law. last time we dealt with the cases and we'll review those and we'll also talk about sort of historical examples of gerrymandering. the word gerrymander comes from the anti-federalist governor of massachusetts who in 1812 passed redistricting plan which looked like a salamander and it's because that -- of that districting plan and in particular one of the districts in it, specifically this one right here that we then had the
term gerrymander coined. let's see. so if you look, this is a picture of massachusetts and that was the district right here. which aldridge gerry drew. despite the fact that the federalist had won more votes in the 1812 election, about 1,000 more votes or so, the democratic republicans won more seats in the state senate. that's because of the district like that. when one of the journalists at the time saw this district, he said, well, let's -- someone next to him said that's a salamander. he said, no, that's a gerrymander. so these are the different towns that were put together in order to craft the mall apportioned and unrepresentative redistricting plan at the time.
as i said, it was both a partisan gerrymander where the anti-federalists, the anti-democratic were trying to gain an advantage and also mal apportioned. so each of these districts, each one of them had -- they were multimember districts where there's three state senators for that district which was the gerrymander. but as you can see, because of the different numbers of people who were in each of the district, the different numbers of representatives, they were able to draw the lines in such a way as to ensure that the party in power was able to stay in power. now, the history of gerrymandering in this country, if we had to sort of break down the themes that we're going to be dealing with in this course and in this section, we look particularly at party, partisan gerrymanders, we look at racial
jer remanders and we look at incumbent protecting gerrymanders. in the early days, basically as you know, before the one person, one vote cases, the court almost never got involved in the law of gerrymandering and the law of redistricting. the one example that proceeds the one person, one vote cases occurs with the tuskegee gerrymander of 1957 and the case of gomillion versus lightfoot. the boundaries of tuskegee were redrawn previous to the redistricting plan. the boundaries of tuskegee looked like that square that you can see here. they were then redrawn to excise basically all but nine african-americans from the entire city. in a 28-sided uncouth figure, and this is from the supreme
court's document. in doing so, the court didn't, in striking down the tuskegee gerrymander, the supreme court didn't declare a fundamental right to vote in the equal protection clause, which we've discussed when we talk and harper versus virginia board of elections. they didn't even give a robust interpretation of even the 15th amendment, except to say that in a districting plan like this, where you are basically through the line drawing process taking people out because of their race, that violates the 15th amendment because it's as if you were disenfranchising african-americans because at time one, african-americans had the right to vote in the city of tuskegee. right? and at time two they'd been
excised from it. it's as though you passed a law that said african-americans can't vote at tuskegee. but except for the gomillion versus lightfoot case, right, for the most part, the court took the instructions that we talked about last time from jugs justice frankfurt that redistricting was a political thicket, that the courts shouldn't be involved, that there were extreme dangers from getting involved. that there was -- cast into doubt the impartiality of the judiciary. that this was not an area where there were manageable judicial standards where they could intervene in order to regulate the political process. because as we discussed, it's lard to think of an area where the different branches of government would be so much put into conflict, like in the context of gerrymandering so that the -- in fact, when courts go in and review redistricting
plans, they are, in a sense, deciding sometimes which party's going to be in power, which legislators are going to be kicked out of office, which communities are going to be represented. and so, given the general restraint prior to the warren court ear, the court never really got involved in redistricting cases. all that changed, as we discussed with the one person one vote cases and we'll review them just a bit. but before we get there, i just wanted to also show you other ways that you can dilute and gerrymander. so we saw in the massachusetts situation that through malapportionment and though the grouping of political adversaries you can overrepresent or under represent different groups. here is another example where through the cracking of a
particular community you can under represent. this is a proposed plan in mississippi in the 1960s where the african-american population is all along the delta here, and so, they drew the congressional districts going east/west in order to make sure each one of the districts was minority black. right? if you wanted -- if you drew the districts north/south instead of east/west, you could ensure a majority african-american district vould have been drawn. a drawing east/west is the a way of ensuring that the african-american community diluted and that their vote is -- they're less likely to elect their candidates of choice. and so, these historical examples describe different strategies that line drawers can use in order to overrepresent the communities they want. under represent others. so i want to just pause for a second to talk about the different strategies with
gerrymandering. so we've been hinting at the idea of vote dilution. as i said in the last class, the notion of a diluted vote assumes that there's something like an undiluted vote. right? that to make an argument about how a community is improperly or underrepresented, you have to have some kind of baseline as to what you think proper representation would look like. the strategic decisions that line drawers make can be grouped into a few examples. so as i was showing you before, you can diminish the influence of your political opponents in certain ways. you can pack them into two few districts. okay? you can crack them by spreading them out among too many, and then can you also stack them. if you remember what eldridge gerry did, he drew the districts in such a way that they were multimember districts. so, for example, if you have a
state that's 30% african-american, and you don't elect by districts at all but you have the entire state electing, you know, four or five congressmen, then you can ensure that a geographically contrasted minority will not be able to elect its candidate of choice. you can see how this works. let's take atlanta. this is a districting plan i was involved in ten years ago. so the dark green areas are the heavily african-american areas, really some 90% african-american here. if you draw the districts inside atlanta, right, you'll end up drawing districts that are over 90% african-american. now, if you join them with the largely white suburbs, right, then they end up being about 30% african-american. and if there's racially polarized voting, right, if
african-americans and whites are voting for different candidates, you can dilute the black vote by taking either strategy. all right? and so, there is a kind of goldilocks principle of redistricting. right? not too hot, not too cold, but to get it just right, assuming what you're trying to do is establish accurate representation. so those are the strategies of gerrymandering. we characterize gerrymanders into one of several categories. a partisan gerrymander typically is drawn by over concentrating your opponents into as few concentrating your supporters. republican gerrymander of pennsylvania that we talked about in v. versus jubelirer. in that case, several of the districts in inner city philadelphia were heavily,
heavily democratic. but as you tried to on the periphery crack those is a parties you tried to provide about 55%, 60% republican districts. right? so you have efficient districts for your friends and inefficient districts for your adversaries. right? that's typically the way a partisan gerrymander works. if you go in that direction, of course, there are risks. right? because if there's a small shift in voter preferences, which is what happened in pennsylvania, your party can lose a whole good number of seats. a bipartisan gerrymander is typically done where you make seats that are safe for both parties. so the republicans get safe seats. the democrats get safe seats. if the state is half democrat, half republican, half the seats will be heavily democrat. half the seats will be heavily republican. often that also involves the strategic placement of incumbents. you make sure incumbents are protected. and an incumbent protecting gerrymander is not exactly the same thing as a bipartisan gerrymander.
sometimes incumbents don't want to be in the safest districts possible from their party standpoint but they want to be in the most familiar districts possible. ones that elected them before and ones that will continue to elect them in the future. okay? now, given the commentary about redistricting and the nausea it seems to instill among so many in the media, there are all kinds of proposals, good government proposals, that are out there, and so often the question is, well, why don't we do the right thing? right? and what is the right thing? if you look at different state laws they have different requirements. some of them require that you have compact districts. in fact, many of them do. based on political subdivision lines line counties or cities or something like that. others require that you respect communities of interest. a slippery concept that can mean everything from religious communities to union
communities to coastal communities. however -- you can define any community by its interests. arizona has an interesting requirement there. arizona says that you have to promote competition. others try to insulate it from partisanship. florida, for example, recently passed an initiative that said no district or plan may be passed that favors or disfavors a party or incumbent in order to avoid partisan bias or promote responsiveness. and then, oftentimes, there will be a preference that courts will apply in the event they get involved to adopt just a least changed plan. and in speaking about court involvement, since this is a law school class, one thing you need keep in mind in looking at these redistricting cases and looking at the different legal requirements is that in the event that the legislature fails
to draw lines or another restricting authority fails to draw line, now the courts are permanent players. and so if you do nothing, when i say, "you," if you are the legislature do nothing, then the consequences that whichever court gets involved, either state or federal court, will then be the backup line drawing authority. i've talked about when i experiences recently drawing the congressional districts for connecticut. i'll show you some other redistricting plans i've drawn for georgia and new york. the -- so the default option, if you do nothing, is to, as a consequence, you have the courts get involved. and so, sometimes legislatures will gamble on that. in fact, right now that's the story here in new york. that are the democrats and republicans have not gotten together on a redistricting plan and so a court hat been impaneled and they're having hearings just today at 2:00 p.m. okay. so those are the strategies. just a brief two minutes on the inputs into the redistricting process.
what those of us who draw lines pay attention to when we're drawing the lines. some of you are also in my redistricting class where we're actually sitting down and drawing the different maps for each state. the -- basic building blocks of redistricting plans are census data. okay? and census data, the census provides you with population data. total population data and voting age population by race for every level of geography in the united states. so the smallest census unit of geography is a block. and for every level of geography, we have racial data broken down by the total population and voting age population data broken down by race. and not only just by race, the six major racial categories that
we have on the census, but every combination because you're allowed to check off more than one race on the census form. so the six major racial categories are white, african-american, asian, native hawaiian or other pacific islander, american indian or native alaska or some other race. there are six other categories. notice hispanic is not one of them because it's asked of another question, where being a hispanic or latino is seen as an ethnicity and not a race, but when you combine them all together you end up with 126 different racial and ethnic combinations. for every little level of geography in the census. so in addition to just the population data from the census we often have other kinds of data. everything that you can see on google maps you can probably put into a redistricting program. whether it's political subdivision lines like cities and counties.
old district line, topical features like mountains, rivers, et cetera. highways and railroads. and then if you're one of the insiders, and sometimes the outsiders, as well, you'll have political data, such as voter registration data, political election returns, and, for example, where incumbents are going to live. one thing you should know is that in trying to assess the partisan bias and redistricting plan and whether districts are going to perform for one or another party, the voter registration statistics are often not the really reliable data that you want because particularly in the south, for example, there are a lot of white democrats historically, who have been democrats for 50 years but whose voting patterns are much different than other democrats, and so, you end up, if you pay attention only to party registration, it's not going to be a good predictor of how people vote.
so the better statistics are election returns looking at how different precincts have been voting in previous elections to get a good estimate of the likely political performance of an area. and so, you can define communities by their politics or you can define them, as i said, by communities of interest, which is to say, you know, looking at how religious they are. what industries are there? are there union towns? as well as a host of anecdotal evidence that you will get mountain redistricting hearings. i think i've told you when i was one of the experts doing the redistricting ten years ago in new york, we had someone, a little old lady from the upper west side of manhattan who came in and testified for our hearing and said, whatever you do, don't put the upper east side with the upper west side. we're completely different than those people. you know? they'll let anyone build whatever the heck they want over there. we here, we're a different community. and the idea is, you know -- like she was talking about bosnia.
right? are we so different, just across the park? but, you know, you go over there and say, well, it is a little different than the upper west side. right? and so, different communities are going to define themselves differently. now, let's move just to the legal constraints, which is where we're spend the remainder of the lecture. the constitutional constraints, which is what we're talk about today, we'll leave voting rights for the next time. the constitutional constraints the u.s. constitutional constraints can be summarized pretty simply. the first is, one person, one vote. as we've described. there are differ rules for both congressional elections and non-congressional elections, as well as special purpose districts. second, the prohibition on intention racial discrimination and dilution because the redistricting plans are just like any other kind of state
action that when you intentionally discriminate against a racial group, trying to minimize their political influence that will violate the 14th amendment. third, there's another analytically distinct claim coming out of the case shaw versus reno, which prevents the predominant factor in a congressional district, and finally, what i'll call unenforced prohibition on partisan gerrymandering. there's still, it's still, can you still litigate these case, drain the claims, court, but the supreme court has never found a partisan gerrymandering case that has satisfied its standards. now, those are the u.s. constitutional constraints. but when dealing with race and redistricting, you have to think about the voting rights act, as well, and so what we'll be spending about two weeks or more on the voting rights act, let me give awe glimpse of what the
voting act requires right now. as a result of dixie-crat intransigence through the 1960s, lyndon johnson and others banded together pass the voting rights act of 1965. it has two principle provisions, section two and section five. as well as other provisions, as we've talk about which banned literacy tests, et cetera. section five is unique in that it only applies to certain areas of the country. most parts of the south. it also applies to three boroughs in new york city. it applies to arizona and alaska. parts of texas -- all of texas and parts of california. and so, it's unique in than it has this geographic feature that it doesn't apply nationwide. it also requires something of states and localities that know other law requires. if you are covered under the voting rights act, whenever you
pass a law with respect to voting you must get pre-clearance from the department of justice or the u.s. district court for the district of columbia. okay? before that law goes into effect. whether you are moving a polling place or passing a redistricting plan, you have to get permission from the federal government to pass and enforce that law. and the d.c. district court or the doj will decide whether the law has a discriminatory purpose, any discriminatory purpose, and whether it has a retrogressive effect. retrogressive is a term of art in voting rights law that means does it make minorities worse off? okay. and in particular, does it diminish the ability of a racial group to elect their preferred candidates of choice? all right? so if it has either a discriminatory purpose or it
makes minorities worse off, for example, if you have majority minority district, majority minority meaning that minorities comprise a voting majority of a district under the current lines and then you crack and split up that community in the new lines, the department of justice will say that that has a retrogressive affect, that it's making that group worse off. that only applies to certain areas in the country and it's where there are several cases going through the courts right now challenging its constitutionality yet again. so it's likely that in the next year or so the supreme court may strike down that particular law as unconstitutional. but there's another part of the voting rights act, section two, which shrike other pieces of civil rights legislation, it applies across the country and it's unique as a constraint on redistricting. a federal constraint on redistricting in that it
prevents vote dilution. the maps i was showing you before about the african-americans in atlanta, it's those types of strategins. in areas where there's racially polarizing voting, where minorities and whites vote for different candidates, the cracking and packing of minorities would be illegal under that. but in addition to the federal law, the constitutional law plus the voting rights act, there are also state law claims as i was saying before. some states, a lot of states require compactness. almost all, i think maybe all, require contiguity. continuity means connectedness of a district. respect for political subdivision line, partisan fairness, competitiveness, depending on the state you'll have different types of requirements. so let's -- now we're going to talk about the constitutional constraints on redistricting plans, and obviously, there are
a lot of one person, one vote cases and we've talked about them for two sessions or so, but let's review for a second. so that the court originally in caldwell versus green wanted to avoid the political redistricting. the idea courts would come in and affirmatively remap a state as seen by the justice as an completely unrealistic possibility, but 16 years later in baker versus carr, the court holds that malportion in case raised questions under the 14th amendment. right? it means they can be just dished. that they are -- it doesn't come out in baker versus carr way standard as to what makes a malapportioned plan unconstitutional, as we've discussed. but it does say that you can go into court and litigate them under the equal protection clause. two years later, though, it comes up with the one person, one vote rule in reynolds versus sims and all the companion cases that we discussed. lucas versus 44th general assembly.
westbury versus sanders. gray versus sanders. these are all cases that strike down one or another redistricting plan as unconstitutional because it's malapportioned. and so out of reynolds versus sims and the companion cases we get the rule that you cannot have districts that are substantially overpopulated or underpopulated. that you have to make districts that are as equal as is practicable. but as we discussed, that just tells you about the numbers that have to be sort of evened out between districts. it doesn't tell you who should be in those districts or what the denominator should be, and so the court has left open, at at least explit police sitly in burns versus richardson,
explicitly and implicitly since then, has said that, well, you could draw districts base and equal numbers of registered voters. and as we discussed, the -- the fact that you have flexibility in the denominator, right, whether you can draw districts based on total numbers of people, voting age population, citizen voting age population. registered voters, eligible voters, actual voters. that the differences between each of those statistics is huge. and so, burns versus richardson is still on the books but for the most part, every jurisdiction uses the total population numbers that come from the census bureau. there is a bit of a difference this time around in the 2012 redistricting. some states like new york, maryland and delaware have all passed laws that require reallocation of prisoners to their pre-incarceration address, which raises -- is inviting some litigation under the one person, one vote rule. but the rule out of the one person one vote cases is different depending on which
type of redistricted plan the court is considering. so in the case carr versus dagit, the court found that the plan, despite the fact the largest district was only 0.7% greater in its population than the smallest district, that that districting plan was unconstitutional because the rule for congressional districts is something close to perfect population equality, unless you can show that legitimate interest justify every deviation of the plan. i've highlighted for you. this is the map that was in the supreme court case itself. just to give you a sense of the district and how it was described. right? in a fancy, one comment tater notes, in justice stephen's opinion, a new district may be